Amit Sarin vs Registrar Of Companies

Bachu Venkat Balaram Das, Member (Judicial)

This Appeal has been filed by the Company “M/s. Carnation Promoters Pvt Ltd” through Shri Amit Sarin, Shareholder, hereinafter referred to as “the Appellant-Company” invoking the provisions of Section 252 (3) of the Companies Act, 2013 (the Act) for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi & Haryana. The authorized capital of the Appellant-company is Rs.100,00,000/- and paid up share capital of Rs.1,00,000/-.

As per the averments M/s. Carnation Promoters Pvt Ltd., was incorporated on 13.08.2004 as a private limited company and has its registered office at H-65, Connaugth Circus, New Delhi -110001 having CIN No. U45201DL2004PTC128313.

Since incorporation, the main objects of the Appellant-company as set out in Memorandum of Association are to purchase, acquire, take on lease, or in any other lawful manner any land, buildings and structures and to develop the same and dispose of or maintain the same and build township, markets, commercial complex with all or related conveniences thereto and to equip the same or any part of other buildings or any related amenities or conveniences such as drainage. To act as commission agents and dealers in farm, land building, whether commercial, residential, whether meant for purchase, sale , resale or let out.

A sweeping action was initiated by the ROC at the instance of MCA in striking off the names of several Companies who had failed to file their Statutory Returns. The Appellant –company failed to file their statutory returns for F.Y. 2017-18 thereby giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013 vide struck off Notification No. ROC-DEL/248(1)/STK-5/3789 dated 09.08.2019 at Sr.No.1587 published in the official Gazette.

Upon notice to the Registrar of Companies, (“RoC”), ROC filed their report dated 06th June, 2023. The RoC in their affidavit stated that the action of striking off the present Company was legal and justified and was the result of the operation of the Law, as the company was not carrying on any operations for a period of two immediately preceeding financial years.

The appellant –company in their petition submitted that the Appellant -Company could not file its Annual Return and Financial Accounts for the year 2017-18 due to oversight and for 2018- 19 the same could not be filed because the same of the Company was struck off by the respondent-RoC.

The appellant-company submitted that ROC and Income-tax were duly served. Income-tax Department was proceeded ex-parte due to non-appearance. The ROC in their report submitted the following :-

Particulars

Revenue operations

from

F.Y.   2016 petition.

to

2021submitted

with

the

Audited   Financial statement

Submitted  with  petition  for  F.Y. 2016  to 2021

Bank Statement

Submitted  with  petition  for  A.Y. 2017 to 2021

Income             Tax Returns Acknowledgements

Submitted with the petition for A.Y. 2018 to 2021

The appellant-company also submitted that the company was carrying on its business during the two preceeding Financial Years.

Non filing of above statutory documents with ROC is an inadvertent mistake on the part of the management of the company but it was not deliberate. The Appellant company submitted that they are ready to file the above statutory documents now with payment of additional fees.

We have considered the plea of the Appellant and the representations of RoC. The Appellant is seeking restoration of the name of the Company namely Carnation Promoters Pvt Ltd., in the Register as maintained by RoC relying on the ground that the Appellant Company is actively doing business and is in the possession of certain assets.

The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes that, if it is just and equitable to restore the name of the company in the Registrar of Companies, it may direct the RoC to restore the name in its Register.

The appellant has been able to satisfy this Bench that it has certain assets which necessitate and justify restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various Courts it should only be in exceptional circumstances that Courts should refuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight.

Accordingly, the appeal is allowed subject to payment of costs of Rs.25,000/- to the Registrar of Companies. The restoration of the Appellant Company’s name in the Register will be subject to their filing all outstanding documents for the defaulting years as required by law and completion of all formalities, including payment of any late fee or other charges which are leviable by the respondent for the late filing of statutory returns. The name of the petitioner company shall then stand restored in the Register of the Registrar of Companies (RoC), as if its name of the company had not been struck off.

The direction for freezing the Bank Account(s) of the Appellant company, if on this ground, shall consequently be also set aside immediately to enable the company to carry out its business operation. Compliance of this order for restoration shall be made by the respondent with all its consequential effects within one week of compliance by the appellant.

The appeal is allowed and disposed off  accordingly.

Let the copy of the order be served to the parties.